{"id":164559,"date":"2025-10-28T17:24:55","date_gmt":"2025-10-29T01:24:55","guid":{"rendered":"https:\/\/lukeford.net\/blog\/?p=164559"},"modified":"2025-10-28T18:05:46","modified_gmt":"2025-10-29T02:05:46","slug":"max-weber-the-lawyer-as-social-thinker","status":"publish","type":"post","link":"https:\/\/lukeford.net\/blog\/?p=164559","title":{"rendered":"Max Weber: The Lawyer as Social Thinker"},"content":{"rendered":"

Stephen Turner wrote in this 2020 book<\/a>:<\/p>\n

The law lends itself to characterization as a world constituting conceptual structure. The list of \u201cfacts\u201d admissible in a court of law are different from the facts as we ordinarily think of them and from the facts of science. The reasoning about these facts that is admissible or legally valid is distinct from the kind of reasoning that we accept in everyday life as rational. The courtroom is an artificial setting, like the laboratory, and, as with the laboratory, special training is required to understand fully what is going on within it. The fundamental concepts, such as \u201cresponsibility,\u201d are akin to concepts employed in non-legal settings, but differ from them, as petitioners often find to their dismay. The peculiarity of legal reasoning and the artificiality of the world disclosed by it is part of the experience of every aspiring lawyer. Those who cannot learn to think like a lawyer cannot become lawyers. But the fact of differences between legal reasoning and other forms of reasoning are continually present to the lawyer. Much of the lawyer\u2019s time is taken up with explaining to clients the differences between what is, in the idiom of the client, just, fair or true and what is just, fair or true in the eyes of the law.There are, however, difficulties with any characterization of the law as a separate \u201cworld.\u201d The sphere of legal reasoning is not entirely separated from the \u201cworld\u201d occupied by ordinary people. Much of what the lawyer does in the courtroom is to translate claims of people about their action framed in ordinary language into the language of the law. J.L. Austin made this point in a famous paper, \u201cA Plea for Excuses,\u201d by quoting the statement of Finney, an attendant at an insane asylum who had scalded a patient to death and was being tried for manslaughter in an 1874 case. Finney\u2019s statement (rendered here as it is presented by Austin, with statements in ordinary idiom of excuse set in italics) described the circumstances thus: <\/p>\n

“I had bathed Watkins, and had loosed the bath out. I intended putting in a clean bath, and asked Watkins if he would get out. At this time my attention was drawn to the next bath by the new attendant, who was asking me a question; and my attention was taken from the bath where Watkins was. I put my hand down to turn the water on in the bath where Thomas Watkins was. I did not intend to turn the hot water, and I made a mistake in the tap. I did not know what I had done until I heard Thomas Watkins shout out; and I did not find my mistake out till I saw the steam from the water. You cannot get water in this bath when they are drawing water at the other bath; but at times it shoots out like a water gun when the other baths are not in use\u2026. (It was proved that the lunatic had such possession of his faculties as would enable him to understand what was said to him, and to get out of the bath.)”<\/p>\n

Finney\u2019s lawyer said the following: “The death resulted from accident. There was no such culpable negligence on the part of the prisoner as will support this indictment. A culpable mistake, or some degree of culpable negligence, causing death, will not support a charge of manslaughter; unless the negligence be so gross as to be reckless.”<\/p>\n

The judge ruled as follows (with the distinctions relevant to the legal idiom in italics): “To render a person liable for neglect of duty there must be such a degree of culpability as to amount to gross negligence on his part. If you accept the prisoner\u2019s own statement, you find no such amount of negligence as would come within this definition. It is not every little trip or mistake that will make a man so liable. It was the duty of the attendant not to let hot water into the bath while the patient was therein. According to the prisoner\u2019s own account, he did not believe that he was letting the hot water in while the deceased remained there. The lunatic was, we have heard, a man capable of getting out by himself and of understanding what was said to him. He was told to get out. A new attendant who had come on this day, was at an adjoining bath and he took off the prisoner\u2019s attention. Now, if the prisoner, knowing that the man was in the bath, had turned on the tap, and turned on the hot instead of the cold water, I should have said there was gross negligence; for he ought to have looked to see. But from his own account he had told the deceased to get out, and thought he had got out. If you think that indicates gross carelessness, then you should find the prisoner guilty of manslaughter. But if you think it inadvertence not amounting to culpability \u2013 i.e., what is properly termed an accident \u2013 then the prisoner is not liable.”<\/p>\n

The lawyer and judge rely on the idiom of the defendant: it constitutes in this case the main evidence for the conclusion of no culpability. But the lawyer does something with the descriptions: he restates them into a language of culpability that allows the law of manslaughter to be applied, and cites a case that is similar in the legally relevant respects in which a similar restatement was accepted by a previous court and thus constitutes a precedent.<\/p>\n

Austin\u2019s purpose was to show that the idiom of the lawyer and judge compared unfavorably with the idiom of the prisoner. He makes two main points: <\/p>\n

(i) Both counsel and judge make very free use of a large number of terms of excuse (the terms set in italics), using several as though they were, and even stating them to be, indifferent or equivalent when they are not, and presenting as alternatives those that are not.
\n(ii) It is constantly difficult to be sure what act it is that counsel or judge is suggesting might be qualified by what expression of excuse. <\/p>\n

He remarks that \u201cThe learned judge\u2019s concluding direction is a paradigm of these faults. Finney, by contrast, stands out as an evident master of the Queen\u2019s English. He is explicit as to each of the acts and states, mental and physical: he uses different, and the correct, adverbs in connexion with each: and he makes no attempt to boil down\u201d ([1961] 1970: 197). Austin, in short, takes sides: against the redescriptions or translations given by the lawyer and judge, and for those of Finney, given in \u201cordinary language.\u201d A neo-Kantian might reply to this taking of sides by defending the claim that the law and the descriptions of the law are simply different from that of the ordinary person. The world view of the ordinary person in a given society, however, is just one world view among others. Weber himself makes this claim: even the \u201clanguage of life\u201d abstracts from reality. \u201cEvery type of purely direct concrete description bears the mark of artistic portrayal ([1904] 1949: 107). To be sure, the language of daily life is governed by different purposes, and abstracts from the full reality of the case in a different way. From this point of view it is entirely appropriate that the lawyer does precisely what Austin complains of: to take as equivalent descriptions that which are from the point of view of ordinary language not equivalent, and to define the act itself according not to ordinary usage but in terms of comparisons Austin considers, however correctly from the point of view of ordinary language, to be inexact or excessively abstracted or \u201cboiled down.\u201d2<\/p>\n

Austin himself acknowledges a difference in purposes \u2013 the overriding need, in the law, for a decision, the requirement that \u201cthe charge or action and the pleadings be brought under one or another of the heads and procedures that have come in the course of history to be accepted by the Courts \u2026 [and] the general requirement that we argue from and abide by precedents\u201d ([1961] 1970: 188). If Austin had been writing of Continental rather than common law, he might have said rather than \u201cargue and abide by precedents\u201d that categorizations of action must be consistent with the framework of concepts that is part of the Roman legal inheritance. What is common to both forms of law is the need to abstract, and the fact that the \u201cabstraction\u201d is governed by a distinctive \u201clegal\u201d purpose.<\/p>\n

Learning the civil law requires learning how to employ a set of concepts with a long history reaching back to the Roman jurists themselves and refined conceptually by the teachers of the Roman legal tradition. But does this make the Roman law tradition a \u201cparadigm\u201d or \u201cfundamental ideology\u201d \u2013 a way of making the world? It is easy to see why commentators would have thought it so. Civil law has a well-defined history, and the history is such that the contrast between legal categories and ordinary language categories is one of its central facts. The Roman jurists were rediscovered, an event known as the \u201creception\u201d by continental professors of the law, and the system of the Roman law was taught to students from the countries of Europe as a closed scientific conceptual system. It was taught for the purpose of application to circumstances alien to those in which it had been originally conceived, namely the society of Ancient Rome. The properly trained student could, it was supposed, return to his own country and apply these categories and forms of reasoning. The conceptual scheme of the law was systematic, expressed in a different tongue than his native language, and precise. Casuistic argument provided the resources to account for difficulties of application, so that the scheme was not fundamentally challenged by novel kinds of facts. <\/p>\n

* Ihering\u2019s argument begins with a simple theory of human nature, a philosophical anthropology. The \u201cworld,\u201d Ihering says, has four levers. The first two are given by nature and take the individual form of pleasure and pain; or, from the point of view of the user of the levers to influence action, of reward and coercion ([1877] 1913: 26\u20137, 73). These primary objective positive and negative levers have \u201csubjective\u201d or psychological forms as well: honor is the carrot and psychological coercion is the stick.3 Ihering said of psychological coercion that it is a kind of \u201cindirect compulsion\u201d ([1877] 1913: 34). In contrast to external compulsion, the \u201cmastery of another\u2019s will \u2026 [in which] the resistance which the foreign will opposes to our purposes is broken by summoning physical power superior to its own,\u201d in cases of psychological coercion \u201cthe resistance of the foreign will is overcome by itself from within\u201d ([1877] 1913: 176\u20137). The second set of levers are moral or ethical, involving the feelings of duty and of love.<\/p>\n

Cooperation, \u201cconnecting one\u2019s own purpose with the other man\u2019s interest\u201d ([1877] 1913: 28, italics in original) and securing \u201cagreement of wills\u201d between parties, is the basis of all social forms or forms of association, including the state. The model is the valid contract4 in which the decisive fact with respect to validity is not the objective reality of the interests or the naturalness of the community of interests, but subjective interest and assent. Interests may be created \u201cartificially\u201d in the sense that a buyer or seller may offer inducements. Moreover, because the \u201csubjective conviction of interest\u201d is decisive to securing agreement in wills, in such paradigmatic cases as commercial agreements this may depend on salesmanship, which Ihering calls \u201cbusiness eloquence\u201d ([1877] 1913: 29). Ihering\u2019s insertion of the notion of \u201csubjective conviction of interest\u201d marks a step away from reductive naturalism, the idea, central to Hobbes, for example, that social institutions may be explained by reference to a simple list of more or less fixed human needs or wants.The concept of ideal interests is another step in the same direction. The reasoning behind it is characterically legal. Ihering points out that forms of work that are not considered, legally, a proper subject for exchange and therefore of material reward may be rewarded in non-material ways, and that these rewards may have a large significance in society. He notes that in Rome it was considered ignoble to pay for intellectual work ([1877] 1913: 81).5 But the gift of non-manual services by free men to the state was not unrewarded: the reward was honor. When money was needed to support an intellectual worker, a novel legal form, the honorarium, was invented for the purpose of distinguishing it from mere money payment for labor. Interest in honor is the paradigmatic \u201cideal\u201d interest. Such interests may, as in the case of administrative intellectual work in the later Roman Empire, come to be mixed with monetary reward. But honor is conceptually distinct from monetary reward, and cannot be reduced to it. It is a distinct \u201clever\u201d that can be used in the process of securing agreement in wills or more generally in inducing particular forms of behavior.<\/p>\n

Ihering uses the \u201clevers\u201d of reward, coercion, honor (or ideal interest) and psychological coercion as a means of categorizing the social relationships that employ them. Commerce is organized compensation, reward given for reward. Revenge is the return of evil for evil.6 These are, so to speak, the primitive social uses of the two lower \u201clevers.\u201d Commerce has two forms, exchange and association. \u201cExchange presupposes a difference of need on both sides, and accordingly also a difference in the means whereby the need is to be satisfied, viz., in the mutual services\u201d ([1877] 1913: 95). Identity of purpose is the basis of association or, in legal terms, the contract of partnership \u201cwhen the purpose exceeds the powers of a single person, or when the combined pursuit of it gives a prospect of economy in the means to be expended, or greater security in the attainment of the purpose.\u201d The Roman legal term for this sort of association is Societas. Commerce is egoistic in essence, and largely self-regulating. Competition and supply and demand set prices and define \u201cequivalence.\u201d Each person, acting egoistically, constrains the others by rewarding them with remuneration. Under ordinary circumstances, law is not necessary. But there is a role for legal coercion in the regulation of commerce in checking excesses of egoism, such as those that produce the extraordinary circumstances of force, fraud, and the like. Legal coercion, then, has only a supplementary role, albeit a necessary and in some circumstances important one, in relation to commerce. But the idea of replacing commerce by state power, replacing reward by coercion, is not practical: \u201cCoercion is effective only so long as the whip is in sight; remuneration works continually\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

Stephen Turner wrote in this 2020 book: The law lends itself to characterization as a world constituting conceptual structure. The list of \u201cfacts\u201d admissible in a court of law are different from the facts as we ordinarily think of them … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"om_disable_all_campaigns":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[551],"tags":[],"class_list":["post-164559","post","type-post","status-publish","format-standard","hentry","category-law"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t